As laptops, and even cell phones, become increasingly powerful and ubiquitous, in-class Internet usage will continue to increase. Many schools have met increased surfing by switching off wireless networks during class-time. One noteworthy example is the University of Chicago Law School's recent Internet ban.

Simply switching off local wireless networks, however, will not solve the problem, especially as more students use mobile broadband networks and cell phones, such as the iPhone, to access the Internet. Furthermore, there are pedagogical benefits to allowing Internet access in the classroom. Therefore, switching off the Internet might not only be an ineffective way to limit in-class surfing, but it might also lower the quality of higher education. In this Essay, I draw on Professors Richard H. Thaler and Cass R. Sunstein's idea of libertarian paternalism to argue that there are effective ways to curb Internet usage without banning it entirely. As a recent graduate student, current professor of economics, and future law student, I hope to offer a fresh perspective on the debate.

October 13, 2008

Jana R. McCreary (Florida Coastal School of Law) has posted The Laptop-Free Zone
(Valparaiso University Law Review, Vol. 43, 2009) on SSRN. Here is the abstract:

This new article, "The Laptop-Free Zone," addresses the hotly debated issue of laptops in law school classroom; those debates are ongoing on countless blogs, on NPR, in national newspapers, and across law school campuses. This article reports and analyzes the data collected through an IRB-approved survey of almost 450 law school students at three different law schools regarding the students' views of laptops and reported distractions caused by laptops. To provide context, the article also addresses the current arguments against laptops, negating those points as being outweighed by the proper and beneficial use of laptops. Additionally, the article provides information to be considered in teaching adults and to different learning styles, namely, global and analytic learners, and how those concerns are matters to consider in the laptop debate.

According to the survey results, students who do not use a laptop are overwhelmingly more likely to be distracted by others' laptops than students who are using their own laptops. In other words, yes, laptops cause distractions, but that primarily affects students who are not using a laptop. Accordingly, based on the learning style information and my survey results, I suggest that laptops not be banned from law school classrooms. Instead, I argue that professors must do their best to teach to all students - to those who feel they learn best by using a laptop as an aid and to those who complain of the distractions caused. I do this by implementing a laptop-free zone, restricting the first or first few rows in my classrooms to no laptops. This creates an area where students who are distracted by neighboring screens and nearby typing are free (as possible without an all-out ban) from those distractions. Further, doing so still respects those students who have learned to use a laptop as an educational tool.

As a surprise to me, the survey also showed that many students make the decision to give up their laptop after experiencing attending a class without one, noting they would not have been willing to go through such an experience by their own decision. However, once they experience not using a laptop in the law school classroom environment, they often change their method of taking notes and report improved learning and classroom experiences. Accordingly, I also suggest that instead of banning laptops, we provide beginning students with only a week or two of a laptop ban at some time during the first semester of school. This compromise will serve the interest of the most students most effectively, respecting them as adults while providing supportive guidance to their own decisions about their learning environment.

The essay is an attempt to clarify some issues concerning the point of doing conceptual legal theory. It argues for a kind of reassessment of the relationship between conceptual legal theory, legal doctrinal scholarship and the legal practice. The analysis concentrates on what may be termed the 'mainstream' discourse on conceptual legal theory (characterised by authors like Hart, Raz, Dworkin, Finnis), and depicts the mainstream discourse as functionally connected to legal doctrinal scholarship. A more open commitment to reflecting current problems of legal doctrinal scholarship would make the position of mainstream conceptual legal theory more intelligible. If it wants to maintain its position as a complex theoretical discourse, mainstream conceptual legal theory must take direct responsibility for serving the epistemic needs of legal doctrinal scholarship. The analysis leads to the identification of a dual function for the mainstream conceptual discourse: it has to be able to contribute to the doctrinal debates, and it has to be able to make sense of the external challenges to legal doctrinal scholarship. The specific contribution of conceptual theory to the doctrinal debates is the ability to assess the competing doctrinal claims in light of the epistemological characteristics of the legal doctrine in a modern legal system. The issue of pragmatism plays an important role in the essay. It is argued that there are limits to making conceptual legal theory pragmatist in spirit.

And from the paper:

When I claim that mainstream conceptual legal theory is functionally connected to the normative professional discourse on law, I am only a step away from the conclusion that most conceptual legal theories are driven by the epistemic needs of lawyers. But I am not willing to take that step as I am convinced that it would be wrong to think that conceptual legal theory should be addressed to lawyers. In fact, I have already indicated above that conceptual legal theory cannot really be driven by the epistemic needs of lawyers. I tend to think that lawyers rarely operate on the basis of conceptions of law.37 It is time to make that point a bit clearer here.

I admit that one can make a strong case for the view (as Richard Posner did38) that practitioners do not need conceptual legal theory at all: from the viewpoint of settling legal disputes, nothing hangs on it. Although it is not literally true,39 it comes very close to being true. I tend to think that conceptual legal theory cannot really address the actual epistemic concerns of lawyers, and it has a lot to do with what I call the limits of pragmatism in legal theory. There is a sort of inevitable incongruence between conceptual legal theory and legal practice that we have to keep in mind when we try to identify the functions of any conceptual discourse.

* * *

I would like to make use of two senses of the term [pragmatism] in the present analysis. First, pragmatism can refer to an attitude, a way of approaching practical challenges. In this sense, pragmatists are those who are conscious about restricting their considerations to the factors that have direct practical relevance in the given situation.41 I assume that this is the key ingredient to the practical orientation of any good practitioner. We could say that a good practitioner is pragmatist by nature. Secondly, pragmatism can be a way of approaching theoretical problems. In this sense, pragmatism is a dedication to integrate the practical orientation of the good practitioner into the theoretical analysis. A theorist can have several reasons to be pragmatist in this sense. She may try to reach a better understanding of the way practitioners think. She may think that the mindset of the good practitioner can be helpful in tackling theoretical problems. Or, she may try to develop theories that are attractive to the practitioners — that they may find relevant for their practice. For some theorists, pragmatism is an expression of the hope or ambition that adopting a pragmatist attitude can enable theories to give some guidance to the practice.

I assume that law as a profession should be associated with pragmatism in the first sense: as practitioners, lawyers’ are required to limit their professional interests to what is directly relevant to their practice.42 It seems to me that, although taking up a pragmatist approach is helpful in legal theory, taking up the particular kind of pragmatism characteristic of good practitioners attitude is not a real option for legal theorists in general and conceptual legal theorists in particular. There is an obvious incongruence between the ways problems of law are perceived by practitioners and reflected by theorists. (And mainstream legal theorists are recurrently reminded of that incongruence by their realist critics.43)

There is a limit to emulating the practical orientation of practitioners even for pragmatist theories. As theories, they cannot retain the flexibility of the practitioner’s pragmatism.44 If we need to point to a specific problem that makes it hard for a theory to accommodate the practitioners’ attitude, it may be enough to consider the problem of coherence. Practitioners can afford to be far more insensitive to problems of coherence than theorists. Practitioners often combine theoretically incompatible considerations or calculations when they make practical judgments — without even noticing it. Or they often use different argumentative strategies in different situations without ever attempting to find principles that organize them into a coherent whole.45 And, of course, they very often follow some routine or tradition without reflecting on the possible inconsistencies inherent in them.

August 18, 2008

Here are some observations drawn from nearly seventeen years spent as a legal academic, using a particular device: the depiction of several fictional yet all-too-familiar legal academic characters. With one exception these characters are imaginary - yet their name is legion. The characters are The Drone, The Bully, The Hack, and The Fraud.

What can be done about them - or about us? Answering this question at all satisfactorily requires confronting more than the personal flaws of particular individuals: it necessitates grappling with the structural failures of the contemporary law school. It's true that some of what is wrong with legal education is no different than what's wrong with higher education in general. But in legal academia, the especially problematic relationship between the requirements of professional training and of pursuing knowledge create special problems for the integrity of the discipline.

All the "characters" I describe - and the institutional structures that make them possible - pose serious ethical and economic problems for the contemporary law school. They undermine intellectual standards and interfere with professional training. As to solutions, a first step would surely involve legal academics facing up to various uncomfortable truths about the way we live now.

Currently, law schools tie together five quite distinct services in one package, offered to a limited number of students. These five functions are: (1) impartation of knowledge, (2) counseling/placement, (3) credentialing (awarding grades and degrees), (4) coercion, and (5) club membership. Students do not have the opportunity to pay for just the services they want or to buy each of the five services from different providers.

This article proposes an "unbundled" system in which the five services presently performed by law schools would be rendered by many different kinds of organizations, each specializing in only one function or an aspect of one function. Unbundling of legal education along functional lines would substantially increase student options and dramatically increase competition and innovation by service providers. This offers the hope of making available more individualized and better instruction and giving students remarkable freedom of choice as to courses, schedules, work-pace, instructional media, place of residence, and site of learning. Most importantly, this improved education would be available on an "open admissions" basis at much lower cost to many more individuals throughout the nation, or even the world.

In order to explain how to restructure the existing law school system, this article will discuss the five educational services presently performed by law schools, the disadvantages of tying these services together, a hypothetical unbundled world of legal education, the advantages of the unbundled system, answers to some possible objections to the system, and some recent developments in the use of technology and distance learning in law schools.

The main theme of this article is the advantage of unbundling. A more modest sub-theme is the benefit of use of technology and distance learning.

June 20, 2008

I was interviewed yesterday by the Chicago Tribune for this story. Assuming the Tribune story is accurate, Northwestern's program will include one initial summer term (similar to that offered by the University of Michigan), four traditional semesters, plus intersession courses. In other words, the same units will be be reconfigured from the traditional three 8 month blocks (14 week semesters) punctuated by summers and winter breaks into one continuous 24 month block, with very short breaks. Here is another way of looking at it: From start to finish, law school now takes 32 months with two winter breaks and two summer breaks, whereas the Northwestern two year program will allow completion of law school in 24 monts with no winter or summer breaks.

The Tribune indicates that Northwestern has not yet announced a tuition plan--but it seems unlikely that there would be any significant per unit reduction. Making law school more intense--hmm?

June 10, 2008

As Griffin said, summarizing Larry Solum (about whose work Griffin has blogged at Balkinization) but not purporting to be stating his own views, given that the Constitution contains an amendment mechanism in Article V, there ought to be at least a pretty strong presumption against changing its meaning by other mechanisms. Here I’ll rehearse a couple of answers to this claim, mostly as an excuse to set out a thought experiment (point 2 below).

To set the record straight, this is not an argument that I make, either in Semantic Originalism or elsewhere. Semantic Originalism does summarize the "writteness" argument made by Randy Barnett--which does bear a sort of family resemblence to the argument that Dorf reports that Griffin attributed to me. (I was not in the audience I do not know what Griffin actually said, although it seems unlikely that he did in fact make such an attribution.)

The argument that I actually do makein Semantic Originalism is that the linguistic meaning (or "semantic content") of the Constitution is fixed at the time of constitutional utterance--I call this claim the fixation thesis. My argument for this thesis is about the linguistic meaning of the constitutional text, and it simply isn't a claim about the content of constitutional law. (I do make claims about legal content, but those claims are developed via the contribution thesis--the claim in normal (nonexceptional) cases, the linguistic content of the Constitution provides rules of constitutional law.)

Dorf offers a thought experiment which he believes engages his understanding of Griffin's report of my argument. Here is the relevant passage from his post:

The basicargument is this: The Constitution is law because it was adopted by democratically legitimate processes, and so the meaning of the Constitution should be the meaning produced by those processes, rather than a meaning substituted for them by unelected judges.

The difficulty with this argument is its premise that the original act of ratification is what makes the Constitution law today. It doesn't. What makes the Constitution law today is the fact that it is accepted as law today. Imagine that, notwithstanding Ginsburg's data, the U.S. Constitution persists for at least another 10,000 years (by which time, according to Sen. McCain, the U.S. could still have troops in Iraq, but I digress). What would make the Constitution the legitimate law of the U.S. in 12,008, binding on our descendants and the intelligent metal bugs who have also been made "persons" by the 28th Amendment? The act of ratification in 1789? The very idea is ridiculous. To be sure, a consensus might exist that our descendants and the metal bug people look to the 1789 original understanding as a way of resolving constitutional disputes, but if so, that 12,008 consensus, not the 1789 ratification itself, will be the legitimating act.

At this point, it is unclear whether Dorf means to attribute this position to me, but I want to be explicit: I do not hold the position that Dorf identifies as "the basic argument." Indeed, Semantic Originalism explicitly and directly states that I take no position on questions of constitutional legitimacy. The position that I do make goes through a positivist claim (illustrated but not limited to the particular positivist conception of law articulated by H.L.A. Hart's idea of a "rule of recognition") that contemporary legal practice is consistent with the contribution thesis.

What about Dorf's conclusion--that the very idea that ratification in 1789 would be relevant to legitimacy in 12,008 is "ridiculous"? Before I suggest that Dorf's analysis is incomplete--I want to point out that it is obvious that the status of the Constitution of 1789 as "law" or "legally valid" or as "operative legal content" in 12,008 would surely depend on social facts in 12,008--whether those social facts made ratification legally relevant would depend on their content. It is surely possible that if the Constitution of 1789 were in effect in another ten thousand years, then the relevant legal rules would make ratification part of the story of its validity. (This would be the reason why rejected it was the text of the Constitution of 1789 and not any rival proposal or any provisions rejected at the Philadelphia Convention would not be law in 12,008.) That is, events in 1789 could obviously be relevant to legality in 12,008.

What about legitimacy? On that score, Dorf's position is not (as he assumes) obviously true. First, the concept of legitimacy is notoriously ambiguous. On this, see Jack Balkin's recent post, "A Note on Legitimacy and the Functions of a Constitution." As Jack observes, legitimacy has multiple dimensions, one of which "sociological legitimacy"--which, as applied to law inquires into the question whether a law is accepted as legitimate. Of course, it is tautological that the sociological legitimacy of anything in 12,008 depends entirely on sociological facts as they stand in 12,008--that follows from the definition of sociological legitimacy.

What about normative legitimacy? Dorf must realize that normative legitimacy is multidimensional and that there are a variety of theories of normative legitimacy. For example, on Barnett's theory, the normative legitimacy of a constitution hinges entirely on whether it provides a reliable process for ensuring that minimum standards of justice are met. On that conception of normative legitimacy, democratic ratification is simply irrelevant. But as Balkin observes, some theories of legitimacy include a process dimension: on process theories, the legitimacy of legal enactments may depend on their pedigree. And on democratic process theories, the democratic legitimacy of constitutional provisions may depend on whether the provision was adopted through a process that meets minimum standards for democratic participation. If such a theory were the best conception of constituitional legitimacy (and I am not suggesting that it is), then the passage of time does not, by itself, necessarily undermine the democratic legitimacy of the Constitution. Instead, the question might be framed as follows: Does a given constitutional provision meet the minimum standard of democratic legitimacy as specified by two considerations: (1) did the provision enter the Constitution by a process that allowed for sufficient democratic participation, and (2) do de facto conditions for maintenance of the constitutional regime allow for the regime to be replaced and/or the formal content of the constitution to be amended by processes that meet minimum democratic standards. Given a view like this, ratification by democratic processes in 1789 might plausibly be viewed as relevant to normative legitimacy in 12,008.

As articulated, Dorf's argument is radically ambiguous. He doesn't specify whether he means sociological or normative legitimacy, and if he means to refer to normative legitimacy, he fails to specify a conception of legitimacy. Once the conception is specified, then events in 1789 may or may not be relevant to legitimacy in 12,008.

One final point. Some normative theories of legitimacy make "legality" a constituent element of normative legitimacy. Because social facts in 12,008 can make events in 1789 relevant to legality in 12,008, it follows that normative legitimacy in 12,008 might partially depend on events in 1789.

One is that SSRN is not institutionally well suited for the role of permanent repository. SSRN is actually a relatively small private organization that does not, so far as I can tell, have a continuity plan for its archives in case the organization should go out of existence.

Another has to do with the comparative advantages of Westlaw and Lexis as search engines. Google is great, but Google does not permit the full range of proximity operators available from Westlaw & Lexis. Moreover, Westlaw & Lexis focus research on texts likely to be relevant, whereas Google generates considerable noise.

Of course, there is also a certification function--law review placement inexcplicably confers certification (although this seems quite mysterious given the relative inexperience of the selectors).